Tag Archives: land disputes

Paula Defensor Knack is a is a former assistant secretary for Lands and Legislative Affairs at the Philippine Department of Environment and Natural Resources. She wrote on “ Legal Frameworks and Land Issues in Muslim Mindanao” in Land and Post-Conflict Peacebuilding and provides an update in this guest posting. NB: This material may not be published, broadcasted, rewritten or redistributed in whole or part without due reference to the author.

This blog provides a guide to peace-builders in analyzing developments in the Mindanao peace process that occurred since the publication of my chapter on “Legal Frameworks and Land Issues in Muslim Mindanao” (available here in pdf) in Land and Post-Conflict Peacebuilding. The recent signing of the Bangsamoro peace deal for Mindanao or the Comprehensive Agreement on the Bangsamoro (CAB) has received both praise and criticism. It is a work in progress as the CAB has been submitted to Congress for the passage of the Bangsamoro Basic Law. This posting, therefore, represents a guide to peace-builders in understanding the implications of these latest developments .

This blog post is part of a continuing analysis, shared with the 700 or so members of the Environmental Peacebuilding group and policymakers, regarding each phase of this protracted conflict and its series of failed peace agreements. The analysis raises questions relevant to conflict studies, negotiation, mediation, law, political science, natural resources and environmental management, governance and peacebuilding, which may serve as guidance to both students and practitioners. A full-blown academic analysis of this latest peace deal is to follow, but readers are also encouraged to familiarise themselves with the volumes in the Environmental Peacekeeping series related to land, natural resources and governance for case-studies providing lessons on effective post-conflict governance.

The Demands on a Peacebuilder

The work of peacebuilder can be complex, demanding and even life-threatening. Continue reading →

Douglas Batson joined the National Geospatial-Intelligence Agency (NGA) as a political geographer in 2004. He previously worked for the U.S. Geological Survey, the U.S. Department of Justice, and is now retired from the U.S. Army Reserve. Batson wrote on “Snow Leopards and Cadastres: Rare Sightings in Post-conflict Afghanistan” in Land and Post-Conflict Peacebuilding, and provides an update in this guest-posting.

My chapter in Part 3 of Land and Post-Conflict Peacebuilding begins with an overview of the challenges faced by U.S. and coalition forces in rebuilding Afghanistan during the 2000s, and specifically the need for a cadastral system that records the array of relationships between people and land. It also discusses the problems of refugee resettlement in the context of the post-war population explosion and the environmental destruction from decades of conflict. The discussion of secure tenure to land describes local initiatives including dispute resolution and management of land resources. It concludes by underscoring the potential of the Land Administration Domain Model (LADM) to record heretofore undocumentable, orally defined forms of customary land tenure.

Shortly after the completion of my chapter, the International Organization for Standardization (ISO) took up the LADM as a draft standard. I had the opportunity to advocate full adoption of the LADM as an ISO standard to the U.S. Federal Geographic Data Committee. This effort included addressing concerns about the cost of conforming 3,100 disparate U.S. county-level Land Administration Systems (LAS) to a new global standard. The LADM’s value, I argued, lies less in its utility for the U.S. homeland, than in its relevance for U.S. security, diplomacy, and development goals, in a context in which 75% of the world’s people-to-land relationships, or 4.5 billion cases worldwide, are not documented. This situation clearly invites land disputes, land grabbing, and violent conflict.

Kenyans go to the polls next Monday in the culmination of an entire political season spent building institutional guarantees against a repeat of the appalling ethnic violence and mass-displacement that followed the country’s last elections in 2007. Prevention measures ranging from a new 2010 Constitution to a 2012 law criminalizing internal displacement have been earnestly discussed and adopted in the intervening years.

However, the breathtaking fact remains that some of the leading candidates in the current election may be responsible for the violence of the last round – and that their eventual election may be used as a pretext to effectively shield them from accountability for these crimes before the International Criminal Court (ICC).

The resulting ‘bizarre’ nature of the first debate between Kenya’s presidential candidates was captured by Mark Kersten at Justice in Conflict, who also reflected recently on the underlying question the ICC-Kenya brouhaha raises – namely whether transformative political change has supplanted individual criminal responsibility as at least the implicit primary aim of international justice.

There is certainly a case for such an approach, which arguably only transposes the consequences of the individual criminal behaviour of political leaders into the novel but expanding terrain of the state responsibility to protect (see Mark Kersten again, here). If the results of an individual leader’s acts are now recognized as giving rise to a threat to international peace and security, in other words, why should the rest of the international community sit around and twiddle its thumbs?

On the other hand, principled arguments against such an expansive view of the aims of international justice include the risk of politicization of the ICC through selective support of regime change by gatekeeper institutions such as the UN Security Council. However, beyond this concern about the tail wagging the dog, Kenya may now have usefully exposed a major practical limitation on politically transformative international justice. For example, in an otherwise highly cogent piece on the upcoming elections in Kenya on OpenDemocracy, Clare Castillejo argues for what some may view as closing the barn doors after the horses have bolted:

So what can the international community do in these final days before the polls? Firstly it must send strong signals that politicians who incite violence will face international sanctions such as asset freezing, travel bans and – where possible – prosecution. Kenya’s international partners (particularly the US, UK and the EU) and its East African Community neighbours must be prepared to speak out forcefully at the first signs of electoral fraud or organised political violence.

Got that? Politicians now hoping to elude international accountability for past electoral violence by running for elected office are to be prevented from resorting to further violence by threatening them with accountability for such acts. Is that entirely convincing? I do not mean to be facetious, and I am very concerned for Kenya, but is doubling down on a concept of accountability that has proven elusive in practice likely to be effective as a means of protection? Perhaps it will, if applied as part of a unified campaign of international condemnation. But if it does not, the result may further undermine the effectiveness of accountability as a check on such crimes.

Humanitarians are also talking prevention, but in a slightly more nuanced (some might say ambiguous) way. Continue reading →

Caption: Highlands indigenous leaders prepare for a hunger strike in Cochabamba, showing their support for the lowland tribes fighting against the road through TIPNIS. Photo credit: Nicholas A. Fromherz

On October 24, 2011, Bolivians breathed a collective sigh of relief. After a two-month struggle, culminating in massive protests in front of the Presidential Palace in La Paz, Evo Morales signed a bill declaring the Territorio Indígena y Parque Nacional Isiboro-Secure (TIPNIS) “untouchable.”

The controversial road connecting Villa Tunari with San Ignacio de Moxos would not pass through the national park and protected indigenous territory. The peoples’ cry to defend TIPNIS had been heard; “Evo Pueblo” had lived up to his moniker, even if only under extreme pressure, and had listened to his constituents. He even said so himself: “The TIPNIS issue is resolved,” he declared. “This is governing by obeying the people.”

Or so we thought. Though many were probably skeptical from the start, many others—myself included—thought the case was closed. The government would still likely construct a road between Villa Tunari and San Ignacio de Moxos, but the new law dictated that it would skirt the park. That, not prohibition of a road altogether, had always been the goal.

As the last few weeks have shown, however, the victory dance was premature. On February 10, 2012, President Morales signed a new law bringing back from the dead the possibility a road through TIPNIS. Three-and-a-half months after declaring the park “untouchable,” Morales signed a law calling for a “prior consultation” to determine whether the road should go forward as originally planned. How did this happen, and how can we make sense of it?

In trying to keep track of even a fraction of the local and regional flare-ups over land rights these days, I keep thinking back to times when I was working in Bosnia and a particularly infected property dispute would come up in the course of the restitution process. My colleague Charles P (one of the unsung geniuses behind the famous ‘PLIP‘) would shake his head wearily and mutter the climactic phrases of a classic quote from Gone with the Wind:

Why, land is the only thing in the world worth working for. Worth fighting for, worth dying for. Because it’s the only thing that lasts.

It has long been understood that land is fundamental to the material needs and identity of just about anyone not yet caught up in the great wave of urbanization that characterizes our time (as well as many of those who have). The Endorois decision by the African Commission on Human and Peoples’ Rights also represents the latest in a long line of affirmations that recognition of the rights of those with longstanding claims to land through use and attribution is a precondition for them to participate in the life of the state on equitable terms.

It has also long been axiomatic that states retain the final word on land use, and that even where formal nationalization never took place, post-colonial states often inherited – and maintained – laws that held all land not formally owned in a state of inchoate expropriation. Shaun Williams writes on the ongoing challenges presented by ‘state land’ administration in post-colonial urban settings in a recent TN guest-posting, while Liz Alden Wily describes the rural consequences of the ‘public land’ problem in a pithy contribution to ODI’s 2009 research on land and conflict issues.

After the Cold War, the notion that individual and community rights to land might come to be seen as on a par with the state claims to eminent domain were buoyed on the rising tides of human rights and human security. Even if few dared to go as far as to posit a general right to land, there was a sense that policy was pointing in a protective direction. The rise of the post-conflict restitution discourse as symbolized by the Pinheiro Principles has been one example. Another has been the tendency for development standards and instruments to give property rights greater prominence. For instance, The Atlantic recently inferred a paradigm shift in international views on property rights from the post-Cold War proliferation of bilateral investment treaties (BITs) incorporating protections of private property rights:

While the specifics often differ, many BIT provisions protecting foreign investments have become near universal. Both the Turkey-Turkmenistan and U.S.-El Salvador agreements protect foreign investments from direct or indirect expropriation, nationalization, or similar measures “except for a public purpose, in a non-discriminatory manner, upon payment of prompt, adequate and effective compensation, and in accordance with due process of law.” Some countries’ more recent BITs also contain provisions designed to protect environment, labor, public health, and other public policy concerns in addition to the property rights of foreign investors.

However, the Atlantic’s declaration of a post-Cold War “worldwide revolution in how we think about international law and private property” seems premature, precisely because the line between “private” and “public” property remains so heavily contested. Meanwhile, a host of new factors have pushed many states from simply maintaining the status quo (e.g. allowing their populations to continue using ‘state land’ largely unmolested but without the prospect of genuine tenure security) to active predation. The combination of a general economic downturn, rising food and commodity prices, and new forms of state-backed investment have led many states to put their hand in the cookie jar, allocating nationalized and public land to domestic and international investors at a handsome (and typically highly untransparent) profit.

However, the basic dependence and attachment of families and communities to land they consider their own remains, leading to what must be an unprecedented proliferation of sharp and often violent confrontations between states (particularly less representative ones where governments may stand for ethnic or economic elites) and their own citizens over territory. The problem is not limited to states that have nationalized their land or ‘inherited’ public land from prior colonial regimes. However, it seems particularly acute in such settings precisely because the ordinary devices for protecting property from state intrusion assume the prior grant or recognition of rights in such property. Where such rights were ostensibly extinguished by nationalizations or colonial declarations of public land, legality is shifted to the side of the state and communities with every possible equitable right to their land are implausibly – but legally – reframed as squatters.

The international community has traditionally concentrated its legal development activities on the reform of formal justice sector institutions: the courts, legislature, police and correctional services. As it has become clear that these approaches have been relatively unsuccessful in improving access to justice for poor and disadvantaged populations, attention has shifted to the role that customary justice systems might play in the programming of governments, international organizations and NGOs operating in development, post-conflict or post-disaster contexts. A strong argument can be put forward that, in most developing countries, the state cannot provide justice services to its entire population and it might not be the most cost-effective provider of these services. Moreover, part of the reason that customary systems exist is due to shortcomings in formal justice systems.

Sometimes these shortcomings are connected to issues of physical access or dysfunctions such as discrimination or corruption; they can also be because state justice fails to respond to the needs and social imperatives of disputants in the way that the customary system does. Such arguments have influenced the rule of law programming strategies of many organizations. A review of the current policy and programmatic landscape reveals a growing consensus that, despite some obvious challenges, excluding customary justice systems from reform strategies may not be the best approach for enhancing access to justice and protecting the rights of vulnerable groups. There is a growing appeal for strategies that aim to improve the quality of outcomes resolved at the community level by building on the positive aspects of customary systems, particularly their reach and popularity, and attempting to reform negative practices.

But while there is now greater consensus around the issue of engaging with the customary sector, programmatic guidance on how this should occur remains scant. Moreover, partnering with customary justice systems raises new and important concerns. Principally, how can customary systems be supported while at the same time ensuring that this does not equate with a recognition or formalization of rights-abrogating practices? Such concerns have arguably led to technocratic ‘fix it’ programming, such as reforming customary laws to strengthen procedural or substantive protections, or modifying the state-customary interface with a view to regulating or harmonizing the two frameworks. This is problematic because where customary norms do not align with international human rights standards, there are often complex rationales in play, touching upon issues such as culture, socio-economic factors and security. Approaches that concentrate on bringing customary systems into alignment with international norms can thus be, at best ineffective and at worst harmful.

A further concern is the gap between the proliferation of customary justice programs and the evidence and knowledge base on which such programming is grafted. There have been few comprehensive or empirically driven efforts that reflect on or evaluate the impact of past programming efforts. Nor has there been sufficient critical analysis of the objectives of customary justice programming: is the aim to support or supplement state courts, to act as a venue for a decentralization of state legal services, or to form part of a broader spectrum approach to accessing justice? One result is that development practitioners have tended to re-apply programs designed for use at the state level rather than craft activities specifically for use in customary contexts, and replicate activities perceived to have been effective elsewhere without a proper understanding of what conditions facilitated such results.

These questions promted the International Development Law Organization to conduct research into the impact of customary law programming in developing countries. This research culminated in two volumes: “Customary Justice: From Program Design to Impact Evaluation” and an edited volume: “Working with Customary Justice Systems: Post-Conflict and Fragile States”. Continue reading →

Following up on my earlier post on indigenous peoples’ protests against a road project in Bolivia, it seems there have been further developments. In brief, the minister responsible for the violent removal of the protesters has now resigned and the march to La Paz has resumed. The fate of Bolivia’s Isiboro Secure Indigenous Territory and National Park (‘Tipnis’ in Spanish) continues to hang in the balance.

In addition to providing updated coverage of the issue, the BBC has also recently provided a useful analysis of why President Morales, himself both indigenous and an advocate of the rights of indigenous peoples, would persist in backing the proposed road (“Bolivia Amazon protesters resume Tipnis road march”, 01 October 2011). The analysis merits quoting at length: Continue reading →

Terra Nullius

A blog on:
-housing, land and property (HLP) issues
-human rights law and humanitarian policy
-transitional justice and rule of law
-early recovery and development
-self-determination and minority rights.
Open and notorious since February 2010.
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Suggested citation: Author's Name, "Name of Post", TerraNullius Weblog (posted on [date]), available at [URL], accessed on [date].
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Antipodean caveat: The author does not condone imperialist land-grabbing under cover of obscure latin phrases.

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